Court orders rare re-do in surveillance case

6/6/14 6:07 PM EDT

A federal appeals court has ordered an unusual re-argument in a terrorism cases after clerks failed to record the public portion of oral arguments held in the case on Wednesday.

The Chicago-based U.S. Court of Appeals for the 7th Circuit announced Friday that it will try to make up for the error by hearing argument again Monday in the case of Adel Daoud, who's accused of plotting to set off a bomb at a Chicago bar in 2012. Prosecutors filed the appeal after a district court judge ruled that Daoud's lawyers should be able to see classified surveillance that led to the investigation.

"By inadvertence, the device that makes a sound recording of the oral arguments of our cases was not turned on for the public argument in this case on Wednesday," Judges Richard Posner, Michael Kanne and Ilana Rovner wrote in an order (posted here). "Since there is no other record of the oral argument, the court has scheduled a new oral argument." It was initially set for Wednesday, but the court later changed it to Monday afternoon.

The judges went on to say that no law requires appeals arguments to be recorded electronically or by a stenographer, so there's "no legal obligation" to have the case argued again. But they suggest that the appearance of the recording screw-up persuaded them the argument should be re-done.

"Because the inadvertent failure to record the argument occurred in a high-profile case involving very serious criminal charges against the appellee, we have decided to take the unusual step of ordering a second oral argument even though the case itself is not being reheard, whether by the panel or by the full court, following the issuance of a decision," the judges wrote.

The 7th Circuit's chief clerk, Gino Agnello, told the Chicago Tribune that the error occurred because court employees saw special security procedures put in place for the argument and took them to mean they should not record it. The security apparently was due to plans to hold a closed session after the public argument, something the court did with members of the prosecution team but without the presence of Daoud's lawyers—another rare event.

"It was intimidating," Agnello told the Tribune. "My guys frankly assumed they weren’t supposed to record it....We screwed up, and there is no excuse.”

The judges said the secret argument was transcribed by a stenographer. Several journalists attended the open portion of the argument but there was no official transcript or recording.

Shortly after issuing the order Friday explaining the unusual re-argument, the court issued a classified order requesting more information from the government on an ex parte basis, meaning it will not be shown to Daoud's lawyers. That order was not made public but its title was entered on the court's docket.

UPDATE (Friday, 6:41 P.M.): This post has been updated with the court's request for additional, ex parte information from the government.

UPDATE 2 (Friday, 11:18 P.M.): This post has been updated to correct a typo and to note the court changing the new argument to Monday.